DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicant's Amendment filed on June 5, 2025 has been entered. Claims 1, 4, 6-8 and 11-26 are pending. Claims 1, 4, 11-14, 17, 21 and 25 have been amended.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 4, 6-8 and 11-24 are rejected under 35 U.S.C. 103 as being unpatentable over Zeng et al. (CN 103478795 A; Jan. 1, 2014) in view of Husgen et al. (US 2008/0305213 A1; Dec. 11, 2008) and Chen (“Alcohol-An underrated ingredient in cooking”, Science Meets Food, Jan. 13, 2016, Retrieved from Internet URL: https://sciencemeetsfood.org/alcohol-an-underrated-ingredient-in-cooking/).
Regarding claims 1, 7 and 11-13, Zeng discloses a method for producing a broth composition, the method comprising:
Providing a base material consisting of meat (e.g. chicken),
Primary heating the base material by blanching the base material in water at a boiling temperature (about 100 C) for 2 to 5 mins ([0028] in English Translation) to remove impurities that are generated ([0029] in English Translation), thus overlapping the claimed temperature of 90-100 C and time of 3-35 minutes,
Secondary heating the base material, which has undergone washing with cold water, in water at a pressure of 0.024-0.09 MPa ([0026]), which is 0.245-0.918 kgf/cm2, while the claim requires a pressure of 1.0-2.7 kgf/cm2, and
Heating and sterilizing the broth at a material of 115-121 C for a time of 6 to 27 minutes ([0039]), thus falling within the claimed temperature range of 90-130 C and overlapping the claimed time of 10-60 minutes.
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
With respect to the pressure during the secondary heating step, as stated above, Zeng teaches a pressure of 0.918 kgf/cm2, while the claim requires a pressure of 1.0 kgf/cm2.
It is apparent, however, that the instantly claimed amount of 1.0 and that taught by Zeng are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the amount of 0.918 disclosed by Zeng and the amount disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the amount of 1.0 disclosed in the present claims is but an obvious variant of the amounts disclosed in Zeng, and thereby one of ordinary skill in the art would have arrived at the claimed invention absent a showing otherwise.
While Zeng discloses the above process for producing a broth composition, Zeng is silent with respect to a curing step comprising a curing agent of a mixture of condiments, cooking liquor and an organic acid, wherein the curing is carried out at 5-25 C for 2-12 hours, and the curing agent is in an amount of 0.01-2.0 wt% relative to the weight of the base material.
However, the examiner notes that curing steps comprising the claimed curing agents are well known in the art.
Husgen discloses a process for preparing cured meat products, wherein the meat product is combined with a curing agent comprising an extract of condiments and acids ([0006]-[0011]). Husgen teaches that the curing agent gives the meat distinct color and flavor, in addition to preventing the growth of harmful bacteria ([0001]).
Chen teaches the use of wine, a cooking liquor, in meat marinades as the alcohol denatures some proteins present in the meat, which acts to tenderize the meat (page 5).
It would have been obvious to one of ordinary skill in the art to add a curing step to the method of Zeng, wherein the curing step comprising curing agents such as extract of condiments, organic acids, and cooking liquor as taught by Husgen and Chen. Adding such curing step with the claimed curing agents would aid in tenderizing the meat, adding distinct color and flavor while also preventing the growth of harmful bacteria in the process of Zeng as taught by both Husgen and Chen.
With respect to the curing step being carried out at 5-25 C for 2-12 hours, Husgen teach curing for time of 8-20 hours ([0027]) at a temperature between about 0 C to about 50 C ([0015]), thus overlapping the claimed time of 2-12 hours and claimed temperature of 5-25 C. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
It would have been obvious to use a similar time and temperature as taught by Husgen in the process of Zeng as Husgen teaches that such time and temperature is suitable for curing.
With respect to the curing agent in an amount of 0.01-2 wt% relative to the weight of the base material, Husgen further teaches that the curing agent can be present in an amount from 1.0 to 2.08 wt% ([0056]), which overlaps the claimed range.
It would have been obvious to use a similar curing agent amount as taught by Husgen in the process of Zeng as Husgen teaches that such amount is suitable for curing.
With respect to the broth composition comprising the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone, the examiner notes that the combination of the prior art renders obvious the claimed process. While the prior art fails to specifically teach the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone, the combination of the prior art would necessarily result in a broth composition comprising the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
Further, it would have been obvious to one of ordinary skill in the art to vary the processing parameters, including ingredients, times, and temperatures to result in a broth having the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claims 4, 14 and 17, as stated above, Zeng teaches secondary heating the base material, which has undergone washing with cold water. Zeng further renders obvious the claimed pressure as stated above with respect to claim 1.
Zeng teaches a secondary heating temperature of 105-118 C for a time of 50-100 minutes ([0026]), thus falling within the claimed temperature of 105-130 C for a time of 25-100 minutes in claim 4, falling within the claimed time of 25-120 minutes in claim 14, and falling within the claimed temperature of 80-140 C for a time of 20-190 minutes in claim 17.
Regarding claims 6 and 20, Zeng further teaches that a natural antibacterial agent is added to the base material, wherein the natural bacterial agent is a surfactant ([0015]).
With respect to the amount added, it is well within the ordinary skill in the art to vary the amount of antibacterial agent depending on the desired effect. As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) Therefore, absent a showing of criticality, the claimed concentration is merely an obvious variant over the prior art.
With respect to the timing of adding the antibacterial agent, it would have been obvious to one of ordinary skill to add the antibacterial agent at any point in the process, including during the secondary heating step, as it would provide the same benefits to the base material at any point of addition. (See MPEP 2144.04 – Order of Processing Steps is Obvious)
Regarding claim 8, as stated above, the method of claim 1 is obvious over the prior art. Thus, the numbers of bacteria in the meat broth composition prepared by the method are options that a person skilled in the art could easily optimize and derive through ordinary repeated experiments. Therefore, the invention as set forth is obvious in view of Zeng.
Further, the examiner notes that the combined prior art teaches a meat broth that is prepared in a similar process as claimed, and therefore the meat broth of Zeng is considered to comprise the claimed amount of bacteria and fungi absent a showing otherwise.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
Regarding claims 15-16, Zeng teaches that the broth does not include pepper or kimchi.
Regarding claim 18, as stated above, Zeng teaches washing the heated base material with cold water and then performing another heating step. Zeng teaches that such step of washing with cold water after a quick boiling, or primary heating step, allows for impurities and smell to be filtered out ([0026]-[0029]).
Regarding claim 19, Zeng further teaches that the base material is removed to obtain a meat broth ([0013]).
Regarding claims 21-24, Zeng discloses a method for producing a broth composition, the method comprising:
Providing a base material consisting of meat (e.g. chicken),
Primary heating the base material by blanching the base material in water at a boiling temperature (about 100 C) for 2 to 5 mins ([0028] in English Translation) to remove impurities that are generated ([0029] in English Translation), thus overlapping the claimed temperature of 90-100 C and time of 3-35 minutes,
Secondary heating the base material, which has undergone washing with cold water, in water at a pressure of 0.024-0.09 MPa ([0026]), which is 0.245-0.918 kgf/cm2, while the claim requires a pressure of 1.0-2.7 kgf/cm2, and at a temperature of 105-118 C for a time of 50-100 minutes ([0026]), thus falling within the claimed temperature of 80-140 C and claimed times of 20-190 minutes, and
Heating and sterilizing the broth at a material of 115-121 C for a time of 6 to 27 minutes ([0039]), thus falling within the claimed temperature range of 90-130 C and overlapping the claimed time of 10-60 minutes.
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
With respect to the pressure during the secondary heating step, as stated above, Zeng teaches a pressure of 0.918 kgf/cm2, while the claim requires a pressure of 1.0 kgf/cm2.
It is apparent, however, that the instantly claimed amount of 1.0 and that taught by Zeng are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the amount of 0.918 disclosed by Zeng and the amount disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the amount of 1.0 disclosed in the present claims is but an obvious variant of the amounts disclosed in Zeng, and thereby one of ordinary skill in the art would have arrived at the claimed invention absent a showing otherwise.
Zeng further teaches that the base material is removed to obtain a meat broth ([0013]).
Zeng further teaches washing the heated base material with cold water and then performing another heating step. Zeng teaches that such step of washing with cold water after a quick boiling, or primary heating step, allows for impurities and smell to be generated and filtered out ([0026]-[0029]).
Zeng further teaches that a natural antibacterial agent is added to the base material, wherein the natural bacterial agent is a surfactant ([0015]).
With respect to the amount added, it is well within the ordinary skill in the art to vary the amount of antibacterial agent depending on the desired effect. As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) Therefore, absent a showing of criticality, the claimed concentration is merely an obvious variant over the prior art.
With respect to the timing of adding the antibacterial agent, it would have been obvious to one of ordinary skill to add the antibacterial agent at any point in the process, including during the secondary heating step, as it would provide the same benefits to the base material at any point of addition. (See MPEP 2144.04 – Order of Processing Steps is Obvious)
While Zeng discloses the above process for producing a broth composition, Zeng is silent with respect to a curing step comprising a curing agent of a mixture of condiments, cooking liquid and an organic acid, wherein the curing is carried out at 5-25 C for 2-12 hours, and the curing agent is in an amount of 0.01-2.0 wt% relative to the weight of the base material.
However, the examiner notes that curing steps comprising the claimed curing agents are well known in the art.
Husgen discloses a process for preparing cured meat products, wherein the meat product is combined with a curing agent comprising an extract of condiments and acids ([0006]-[0011]). Husgen teaches that the curing agent gives the meat distinct color and flavor, in addition to preventing the growth of harmful bacteria ([0001]).
Chen teaches the use of wine, a cooking liquor, in meat marinades as the alcohol denatures some proteins present in the meat, which acts to tenderize the meat (page 5).
It would have been obvious to one of ordinary skill in the art to add a curing step to the method of Zeng, wherein the curing step comprising curing agents such as extract of condiments, organic acids, and cooking liquor as taught by Husgen and Chen. Adding such curing step with the claimed curing agents would aid in tenderizing the meat, adding distinct color and flavor while also preventing the growth of harmful bacteria in the process of Zeng as taught by both Husgen and Chen.
With respect to the curing step being carried out at 5-25 C for 2-12 hours, Husgen teach curing for time of 8-20 hours ([0027]) at a temperature between about 0 C to about 50 C ([0015]), thus overlapping the claimed time of 2-12 hours and claimed temperature of 5-25 C. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
It would have been obvious to use a similar time and temperature as taught by Husgen in the process of Zeng as Husgen teaches that such time and temperature is suitable for curing.
With respect to the curing agent in an amount of 0.01-2 wt% relative to the weight of the base material, Husgen further teaches that the curing agent can be present in an amount from 1.0 to 2.08 wt% ([0056]), which overlaps the claimed range.
It would have been obvious to use a similar curing agent amount as taught by Husgen in the process of Zeng as Husgen teaches that such amount is suitable for curing.
With respect to the broth composition comprising the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone, the examiner notes that the combination of the prior art renders obvious the claimed process. While the prior art fails to specifically teach the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone, the combination of the prior art would necessarily result in a broth composition comprising the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
Further, it would have been obvious to one of ordinary skill in the art to vary the processing parameters, including ingredients, times, and temperatures to result in a broth having the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone. This is merely routine experimentation that is well within the ordinary skill in the art.
Claims 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Zeng et al. (CN 103478795 A; Jan. 1, 2014).
Regarding claims 25-26, Zeng discloses a method for producing a broth composition, the method comprising:
Providing a base material consisting of meat (e.g. chicken),
Primary heating the base material by blanching the base material in water at a boiling temperature (about 100 C) for 2 to 5 mins ([0028] in English Translation) to remove impurities that are generated ([0029] in English Translation), thus overlapping the claimed temperature of 90-100 C and time of 3-35 minutes,
Secondary heating the base material, which has undergone washing with cold water, in water at a pressure of 0.024-0.09 MPa ([0026]), which is 0.245-0.918 kgf/cm2, while the claim requires a pressure of 1.0-2.7 kgf/cm2, and at a temperature of 105-118 C for a time of 50-100 minutes ([0026]), thus falling within the claimed temperature of 80-140 C and claimed times of 20-190 minutes, and
Heating and sterilizing the broth at a material of 115-121 C for a time of 6 to 27 minutes ([0039]), thus falling within the claimed temperature range of 90-130 C and overlapping the claimed time of 10-60 minutes.
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
With respect to the pressure during the secondary heating step, as stated above, Zeng teaches a pressure of 0.918 kgf/cm2, while the claim requires a pressure of 1.0 kgf/cm2.
It is apparent, however, that the instantly claimed amount of 1.0 and that taught by Zeng are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the amount of 0.918 disclosed by Zeng and the amount disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the amount of 1.0 disclosed in the present claims is but an obvious variant of the amounts disclosed in Zeng, and thereby one of ordinary skill in the art would have arrived at the claimed invention absent a showing otherwise.
With respect to the broth composition comprising the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone, the examiner notes that the combination of the prior art renders obvious the claimed process. While the prior art fails to specifically teach the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone, the combination of the prior art would necessarily result in a broth composition comprising the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
Further, it would have been obvious to one of ordinary skill in the art to vary the processing parameters, including ingredients, times, and temperatures to result in a broth having the claimed amounts of 2-pentyl-furan, 2-heptanal and octanone. This is merely routine experimentation that is well within the ordinary skill in the art.
Zeng teaches that the broth does not include pepper or kimchi.
Response to Arguments
Applicant’s amendment has overcome the 112(b) rejection from the previous Office Action and therefore it has been withdrawn.
Applicant’s arguments with respect to
Applicant’s arguments with respect to the recitation in Zeng regarding the pressure of the secondary heating step have been fully considered and are persuasive. However, upon further consideration, a new grounds of rejection is made using a different interpretation of Zeng as Zeng teaches a blanching step, corresponding to applicant’s primary heating, followed by a heating and boiling step, corresponding to applicant’s secondary heating.
Therefore, for the reasons stated above, a 103 rejection is maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached on Monday-Friday 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791